1
Fair Work Act 2009
s.604—Appeal of decision
Jay Seo
v
Bindaree Food Group Pty Ltd
(C2020/9262)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT SAUNDERS
COMMISSIONER LEE
SYDNEY, 1 JUNE 2021
Appeal against decision [2020] FWC 6468 of Deputy President Asbury at Brisbane on 7
December 2020 in matter number C2020/5464 – private arbitration under a modern award –
entitlement of an employee to a 30-minute unpaid meal break.
Introduction
[1] Mr Jay Seo has lodged an appeal for which permission is required from a decision1 of
Deputy President Asbury made on 7 December 2020 pursuant to s.739 of the Fair Work Act
2009 (the Act) and the dispute resolution provision in clause 34 of the Meat Industry Award
2020 (the Award). Mr Seo is employed by Bindaree Food Group Pty Ltd (Bindaree). The
Deputy President noted that Bindaree is engaged in the wholesale/retail sale of fresh meat and
meat products. Mr Seo is employed on a full-time basis as a production line worker. His role
is, and was at all material times, to prepare meat for packaging on a processing line.
[2] A dispute arose between Mr Seo and Bindaree regarding the claim of Mr Seo that he
was not receiving a full 30-minute unpaid meal break because of requirements to undertake a
range of activities including walking through a boot scrubbing bay, washing his boots and
hands, rinsing knives and a mesh glove, walking up several flights of stairs and down long
hallways, and donning and removing various items of personal protective equipment (PPE)
prior to commencing and completing his break. The clause of the industrial instrument to
which the dispute was said to relate was clause 15.1 of the Award, unpaid meal breaks.
[3] In his Form F10, Mr Seo sought the following relief:
"1. I would like the commission to make a ruling or statement for each of the following:
a. that donning and doffing our PPE is an essential work duty, considering our
regulated industry (food processing) and the types of PPE required, and
considering the fact that we will be disciplined if we do not do this work.
1 [2020] FWC 6468 (the Decision)
[2021] FWCFB 2691
DECISION
E AUSTRALIA FairWork Commission
[2021] FWCFB 2691
2
b. that we should be paid for this work.
c. that our break starts when we have completed all work and are able to enter the
break room
2. I would like to be back-paid at overtime rates for the work done during the break time
over the last ~2 years (10 minutes of work per day).”
[4] It was only at the hearing before the Deputy President that Mr Seo sought to raise a
further claim, unrelated to the meal break provision in the Award, namely that the
requirement at the start and end of each shift to don and remove PPE and undertake a range of
other activities is work for which he is not paid.2 The Deputy President made reference to this
new claim in her Decision, noting that Bindaree “did not object” to the broadening of the
dispute and that she had dealt with all matters raised by Mr Seo.3
[5] Therefore, it is apparent that the dispute ultimately determined by the Deputy
President concerned whether the requirement to undertake a range of activities at the
beginning and end of each shift, and at the start and finish of the 30-minute unpaid meal
break, should be classified as work for the purposes of the payment of wages and overtime
under the Award.
[6] The Deputy President stated that Bindaree consented to arbitrating “the dispute” under
the dispute resolution procedure in clause 34 of the Award and a hearing took place on 16
September 2020.4 We understand this to mean that Bindaree consented to the arbitration of
the dispute as described in the Form F10 application lodged by Mr Seo and as framed by the
Deputy President at the outset of the Decision, that is a dispute about the activities undertaken
before and after unpaid meal breaks and whether they are work for which Mr Seo was entitled
to be paid.5 The Deputy President confirmed that this was the dispute that Bindaree consented
to have arbitrated by the Commission.6
[7] The Deputy President determined the dispute as follows:
“The Respondent submits, and I accept that it pays the Applicant in excess of the
minimum award rates and provides him with paid period of ten minutes each day in
addition to his unpaid thirty minute meal break with the result that the Applicant
receives a meal break of thirty minutes uninterrupted. By virtue of clause 7 of the
Applicant’s contract of employment, these additional benefits can be set off against
any claim he may make for Award entitlements.
I am also of the view that although the additional paid ten minutes was introduced in
July 2020, it would not be appropriate to award back pay for the period prior to that
2 Decision at [52]
3 Decision at [52].
4 Decision at [3].
5 Decision at [1].
6 Decision at [52].
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3
date, given my conclusion that the tasks associated with donning and removing
personal protective equipment are not work.
For the above reasons, I determine that the time spent by the Applicant donning and
removing personal protective equipment – before and after work and before taking a
meal break – is not work for which he is entitled to payment under the Meat Industry
Award 2010 or his contract of employment.
If my conclusion on this point is wrong, I am also of the view that tasks undertaken by
employees associated with donning and removing personal protective equipment at
those times, are properly compensated for when the Award and the Applicant’s
contract of employment are considered. Accordingly, I determine that the activities
described by the Applicant in relation to the donning and removal of personal
protective equipment are not work for which he is entitled to be paid an amount in
addition to the amount he is paid under the Award and his contract of employment.”7
[8] As put by the Full Bench in Mark Hartley v Technical and Further Education
Commission T/A TAFE NSW:
“An appeal under s.604 of the Act is an appeal by way of rehearing, however the
Commission’s powers on appeal are exercisable only if there is error on the part of the
primary decision maker. There is no right to appeal. An appeal may be made only with
the permission of the Commission. Subsection 604(2) requires the Commission to
grant permission to appeal if it is satisfied that it is in the public interest to do so.
Permission may otherwise be granted on discretionary grounds. An appeal cannot
succeed in the absence of appealable error. The fact that a member at first instance
made an error is not necessarily a sufficient basis to grant permission to appeal.”8
The terms of the Award relevant to the dispute
[9] Clause 14 of the Award sets out the provisions applying to ordinary hours of work and
rostering that pertain to Mr Seo:
“14. Ordinary hours of work and rostering
14.1 Ordinary hours and roster cycles
(a) The ordinary hours of work for a full-time employee must not exceed 38 hours per
week or an average of 38 hours per week not exceeding 152 hours in 28 days.
(b) The ordinary hours of work for a part-time or casual employee will be in
accordance with clause 10—Part-time employees and clause 12—Casual
employees.
(c) The ordinary hours of work for a casual employee must not exceed 38 hours in any
week.
7 Decision [62] – [65].
8 [2020] FWCFB 3280 at [6].
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(d) The ordinary hours of work must be worked continuously at the discretion of the
employer, except for meal breaks or other breaks prescribed in the award.
(e) The maximum number of ordinary hours which may be worked on any day or shift
must not exceed 10 hours.
(f) Any hours worked outside the spread of hours listed must be paid at overtime
rates.
…
14.5 Meat retail establishments (including employees of meat processing
establishments and meat manufacturing establishments engaged in retail and/or
wholesale sales of fresh meat and/or meat products and any ancillary products)
(a) Ordinary hours for these establishments are worked between:
Days Spread of hours
Monday to Friday 4.00 am–9.00 pm
Saturday 4.00 am–6.00 pm
Sunday 8.00 am–6.00 pm
(b) Payment for ordinary hours on weekends will be in accordance with clause
24.3.
14.6 Methods of arranging ordinary working hours
(a) Clause 14.6 applies to all establishments.
(b) Matters upon which agreement may be reached include:
i. how the hours are to be averaged within a work cycle established;
ii. the duration of the work cycle for day workers provided that such
duration does not exceed 3 months;
iii. rosters which specify the starting and finishing times of working hours;
iv. a period of notice of a rostered day off which is less than 4 weeks;
v. substitution of rostered day off;
vi. accumulation of rostered days off;
vii. arrangements which allow for flexibility in relation to the taking of
rostered days off; and
viii. arrangements of ordinary hours overall.”
[2021] FWCFB 2691
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[10] Clause 15 sets out the provisions pertaining to breaks for employees. The relevant
provision is clause 15.1 which reads as follows:
“15.1 Unpaid meal breaks
(a) No employee will work for longer than 5 hours without a minimum 30 minute
unpaid meal break. Any alternative arrangements between the employer and the
employee must be by mutual agreement between the parties.
(b) Any employee called upon to work during meal break will be paid at overtime
rates for that period.”
The Decision
[11] There was no particular question framed by the parties or the Deputy President that,
when answered, would resolve the dispute. However, it is apparent from the Decision of the
Deputy President that the dispute (as expanded at the hearing) was about whether or not the
time spent by Mr Seo undertaking a range of activities before and after a shift and prior to
commencing and completing his unpaid 30-minute meal break is work for which he is entitled
to payment under the Award. The Deputy President found that such activity was not work for
which he was entitled to payment. We note that while the Deputy President makes reference
in paragraph [64] of the Decision to time spent by Mr Seo undertaking activities “before and
after work and before taking a meal break”, it is clear from reading the reasons for Decision
as a whole that the Deputy President’s conclusion in paragraph [64] also applies to time spent
by Mr Seo on the relevant activities after taking a meal break.
[12] In making this determination, the Deputy President set out in her consideration the
basis for reaching this conclusion. The Deputy President started by setting out the principles
she considered relevant:
There is no universally applicable definition of the term “work”.
Whether an employee is entitled to payment for activities or tasks or whether those
activities or tasks are work depends on a number of matters, including any relevant
industrial instruments.
Usually, an employee who is directed or required by an employer to be at the
employer’s premises or at a particular location or locations where work is performed,
for a particular period of time, to provide or be available to provide service for the
employer, the employee is at work rather than carrying on private activities, and is
entitled to payment.
The question of whether the employer requires the service to be provided is relevant
to whether an employee is working. A requirement can be direct or indirect. In some
cases, because of the location or the context in which activities are undertaken, the
issue of whether those activities are required by the employer or whether they are
work may be vexed because the employee is put in a position where he or she has no
real option but to perform certain duties. There are also cases where activities which
[2021] FWCFB 2691
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would not generally be considered as work, may become so because of the location
or the context in which they are undertaken.9
[13] The Deputy President then turned to consider the evidence and made the following
findings:
The context in which the activities or tasks are undertaken is important and it is
relevant is that Mr Seo is working is in a meat processing establishment requiring
stringent standards of hygiene.
The PPE worn by Mr Seo is required to protect the product he is producing from
contamination but also protects Mr Seo.
The floors of the workplace can become slippery and particular kinds of boots are
required.
Boots and clothing can be exposed to meat and meat products.
The environment in which Mr Seo works means that it is not reasonable or desirable
that he provide his own clothing or boots.
The mesh glove and cut resistant gloves protect his hands while using a knife.
Hair and beard nets prevent hair from contaminating a product and from employees
being contaminated with product, or their hair being caught in machinery.10
[14] The Deputy President concluded that:
“In short, it is reasonable and necessary for the Applicant to be required to wear all the
personal protective equipment listed by him in his evidence, as much for his own
personal protection and wellbeing as for the maintenance of hygiene standards for the
product he is producing.”11
[15] In not accepting that activities taken in preparation for the meal break is “work”, the
Deputy President found that:
“The Applicant could not enjoy a meal break wearing boots and clothing which may be
covered in meat or meat products. Neither would it be safe or hygienic for him to eat a
meal wearing the items of personal protective equipment he is required to remove
before entering the meal room. While the removal of the items maintains food safety
standards for the Respondent, it also ensures employees can partake of a meal break
without having to contend with soiled items of personal protective equipment,
including clothing.”12
9 Decision at [49] – [51].
10 Decision at [53] – [5].
11 Decision at [55].
12 Decision at [56].
[2021] FWCFB 2691
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[16] Citing her earlier decision in Construction, Forestry, Mining and Energy Union v
Peabody Energy Australia PCI Mine Management Pty Ltd,13 the Deputy President stated that
she did not accept, as a general rule, that while donning personal protective equipment before
commencing work, an employee is working. 14
[17] The Deputy President then stated:
“In the present case the employer does not require employees to be at work at a certain
time to undertake activities associated with donning personal protective equipment.
The employer requires the Applicant to be at work in sufficient time to be ready to
work including wearing his personal protective equipment. The donning of personal
protective equipment is a reasonable and necessary incident of the employee being
prepared to work. Employees are not being briefed or trained or otherwise directed at
the time they are undertaking these activities. They are not directed as to the order in
which they don personal protective equipment or prevented from undertaking other
activities – including engaging with work colleagues – while they are doing so. The
personal protective equipment protects the integrity of the employer’s product but also
the personal safety of the employee wearing it. Furthermore, the employer has the
right under the Award to elect to provide laundered clothing to employees rather than
paying them an allowance, and it is necessary that they leave such clothing at the
workplace which in turn necessitates that they don the clothing before starting work.
It is also reasonable and necessary for employees to remove the personal protective
equipment at work before leaving the workplace. It would not benefit either the
employer or employees if employees were required to wear soiled clothing home or to
carry it home, particularly given the type of soiling that employees would ordinarily
encounter in the Respondent’s workplace. I am also of the view that if the maximum
time donning and removing personal protective equipment is ten minutes, then that is
not an unreasonable requirement for employees at the commencement or completion
of work. Further, I accept that the employer pays over the Award and has made
reasonable attempts to minimise the effects of the requirements associated with
donning and removing personal protective equipment on the private time of
employees.15
[18] In conclusion, the Deputy President determined:
“There may be cases where the personal protective equipment required to be work [sic]
by employees is unusually complex or related to a specialised task which is not
ordinarily performed, so that while donning and removing such equipment employees
could be said to be working. However, the tasks associated with donning and
removing personal protective equipment described by the Applicant in the present case
are not of this kind. It is also the case that the Applicant [sic] has introduced practices
to streamline the pinch points at which employees may be queuing to undertake a
particular task, such as at areas where they wash their boots.”16
13 [2019] FWC 4641.
14 Decision at [57].
15 Decision at [58] – [59].
16 Decision at [60].
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[19] The Deputy President also made observations as to the terms of Mr Seo’s employment
contract and his access to over award payments and the provisions in his contract of
employment which provide as follows:
“Unless otherwise expressly stated, the remuneration payable to you under this contract
is paid and received in full satisfaction of all remuneration and/or allowances of any
kind whatsoever , to which you may be lawfully entitled under the terms of any award
or other industrial instrument that may apply to your employment with the Company
during the period that this contract remains in force.
Furthermore, in the event that any claim(s) is brought by you or on your behalf for
payment of any such remuneration and/or allowance payable under any award or
industrial instrument , the whole of the remuneration paid in accordance with the
arrangements set out in this letter is intended to be applied in satisfaction of any such
claim(s) and all amounts found to be lawfully payable , however they are described,
before the Company is required to make any further payment to you in respect of such
claim(s).”17
[20] As set out earlier, The Deputy President ultimately determined that:
“The Respondent submits, and I accept that it pays the Applicant in excess of the
minimum award rates and provides him with paid period of ten minutes each day in
addition to his unpaid thirty minute meal break with the result that the Applicant
receives a meal break of thirty minutes uninterrupted. By virtue of clause 7 of the
Applicant’s contract of employment, these additional benefits can be set off against
any claim he may make for Award entitlements.
I am also of the view that although the additional paid ten minutes was introduced in
July 2020, it would not be appropriate to award back pay for the period prior to that
date, given my conclusion that the tasks associated with donning and removing
personal protective equipment are not work.
For the above reasons, I determine that the time spent by the Applicant donning and
removing personal protective equipment – before and after work and before taking a
meal break – is not work for which he is entitled to payment under the Meat Industry
Award 2010 or his contract of employment.
If my conclusion on this point is wrong, I am also of the view that tasks undertaken by
employees associated with donning and removing personal protective equipment at
those times, are properly compensated for when the Award and the Applicant’s
contract of employment are considered. Accordingly, I determine that the activities
described by the Applicant in relation to the donning and removal of personal
protective equipment are not work for which he is entitled to be paid an amount in
addition to the amount he is paid under the Award and his contract of employment.”18
The Appeal Grounds
17 Decision at [61].
18 Decision [62] – [65].
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[21] Mr Seo’s notice of appeal (Form F7) did not include particularised grounds of appeal
but referred instead to his submissions. Summarising these submissions, the grounds of appeal
appear to be as follows:
That the Decision of the Deputy President was made in error, including factual
errors, being guided by irrelevant factors, and failing to take into account material
considerations.
The significant factual errors include the Deputy President’s finding that “[t]he
context is that the Applicant is working in a meat processing establishment” was a
mistake of fact as it is a meat retail establishment.
That the context is important because most of the workers who are required to
perform these unpaid activities never come into contact with meat, knives or
machinery directly, and therefore have little to no benefit from performing any of the
activities required.
That the majority of the roles that he is aware of involve handling sealed packages,
and generally do not involve handling meat at all.
That he has worked in roles where he has come into contact with meat directly but
also in roles where he has not touched meat for long periods.
Therefore, the Deputy President’s conclusion that the benefit he receives from
performing the activities contrasts the benefit the employer receives by protecting
the product from contamination is based on a mistaken fact. Bindaree receives a
much more significant benefit than he does, and the majority of the roles that he is
aware of receive nearly no benefit at all.
The Deputy President’s finding that hair and beard nets prevent employees from
having meat product in their hair is incorrect as he shaves his head every day and the
hair net is of no benefit to him.
The requirement to take off the white shirt before entering the lunch room is to
prevent the product being contaminated to comply with regulatory requirements, and
the employer is the only one who benefits from this.
[22] The submissions made by Mr Seo under the heading of “Being guided by irrelevant
factors, not following stated principles, and failing to take material considerations into
account” may be summarised as follows:
The Deputy President alludes to the fact that she has a history of favouring
employers in similar matters in the past by way of her reference to her decision in
Construction, Forestry, Mining and Energy Union v Peabody Energy Australia PCI
Mine Management Pty Ltd.19
That most activities that employees perform are unrelated to “uniforms or PPE” and
therefore the Deputy President has been guided by irrelevant principles.
19 [2019] FWC 4641.
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The equipment worn and activities performed are primarily, and sometimes entirely,
for the protection of the product, although some equipment/activities do provide
some secondary benefits to the employees, however the balance is not even close to
50/50.
The activities in question are long and complex, involving walking through a long
maze and undertaking specific activities at multiple points along the way. The
activities are to be performed in a specific order and performed at least 4 times per
day. The Deputy President was wrong to find that it was not unusually complex, and
her logic is “wildly unreasonable” on this key point.
The finding of the Deputy President that the practices were introduced to “streamline
the pinch points at which employees may be queuing” is not correct. While breaks
were “staggered” for a time, this was temporary and related to the pandemic and has
now been revoked.
The fact that the employee does the activities in their own time means there is no
incentive for the employer to do repairs and innovate the system.
The payment of above minimum award rate and the additional paid break of 10
minutes per day is a separate issue and the Deputy President has acted on wrong
principles regarding it.
That he is owed a significant amount of backpay due to unpaid overtime (not in
relation to any of the matters in dispute).
When the underpayments are taken into account, he has been regularly paid below
the minimum wage. Further, he has been paid less than what was agreed. If a
company can offer an above-award rate, acquire an employee, and then underpay the
employee based on the claim that the company could have paid the employee less
and still been above the minimum award entitlement, that undermines the entire
foundation of contract law, negotiation, choice, market economics, and autonomy.
Without a precedent to “cement” the extra paid 10 minutes of work, the entitlement
could be removed.
In general, the Deputy President has acted on wrong principles (and perhaps more
accurately a lack of any right principles), was guided by numerous irrelevant factors,
and much of it seems to have been based on a fundamental mistake of fact.
Additionally, the fact that the employees have no control over these activities has not
been taken into account at all, and this is a material consideration.
Bindaree’s submissions
[23] Bindaree submits as follows:
That while much of Mr Seo’s case referenced the collective of “we” or “our” in
reference to the PPE, no specific evidence was provided as to the work activities of
others.
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The Deputy President correctly characterised the dispute as being about the nature of
“work” in respect of which there is no universally applicable definition, and
correctly articulated the test to be applied at paragraphs [49] – [51] of her Decision.
The various findings made by the Deputy President were sufficient to justify the
conclusion at paragraph [64] of the Decision that “the time spent by the Applicant
donning and removing personal protective equipment – before and after work and
before taking a meal break – is not work for which he is entitled to payment under
the Meat Industry Award 2010 or his contract of employment.”
The only activities of “doffing” PPE referred to by Mr Seo were at 2.1(1)(c)(ii) and
(ix) of the Form F10. That is, “We finish our work on the line and we are told to go
on our break” and “In the locker room we can remove our white shirt (considered
PPE).”
No attempt was made by Mr Seo to distinguish walking time from the other
activities and personal hygiene action from other activities. However, in the
statement of Todd Newton, Bindaree gave uncontradicted evidence that the walking
component was measured at 90 seconds, donning PPE as one minute, and scrubbing
large pieces of meat off boots as 10 seconds. The cleaning function is said to be
significantly less onerous in this workplace than would be the case of a kill floor or
boning room in an abattoir. The donning and doffing of hair nets, beard nets and
earplugs was not measured, but would be essentially de minimus, or so small as to be
of no significance.
In addition to the clear findings and conclusions of the Deputy President as to the
correct characterisation of the donning and doffing of PPE, that waiting for a few
moments to perform personal hygiene functions such as washing and drying hands
and boots after performing work and before taking a break, cannot be described as
“work” for present purposes. Similarly, a walking period of 90 seconds between the
production area and the locker room or break area is no more than a usual or typical
time required for an employee to take in order to be at their workstation ready to
work, and is not “work”.
In the event that it is accepted that the activities listed are work, the activities are
largely compensated for when Mr Seo’s contract of employment and associated
additional payments are considered.
While Mr Seo’s assertion that they are “required to spend 10 minutes of our break
time doing essential work duties” is disputed, even if that were the case, Mr Seo was
being paid for that 10-minute period at the time the dispute was lodged because an
additional paid time period of 10 minutes free from production work had been added
to the 30-minute Award unpaid meal break period since June 2020, before this
dispute was lodged, as Mr Seo conceded.
As such, the Decision raises no matter of importance and general application, nor
does it deal with a diversity of decisions. It is consistent with principles applied in at
least one earlier decision, does not manifest an injustice, is not counterintuitive and
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does not apply legal principles which are disharmonious when compared with other
decisions.
The only ground of appeal that is brought is in paragraph 1.2 of the notice of appeal,
namely “The decision that the activities are not ‘work’”.
[24] Bindaree submits that Mr Seo’s submissions which are said to constitute the grounds
of the appeal are a mixture of grounds, submissions in support of the grounds, unsupported
assertions of fact, and new evidence which was not placed before the Deputy President.
Bindaree submits in relation to those matters as follows:
The matter described in paragraph 6 is not a mistake of fact. On a number of
different occasions in the Decision (commencing at [2]) the Deputy President
referred to the fact that the plant was a “meat retail establishment” under the Award
definitions. Read as a whole, the Decision plainly intended to recount the fact that
the premises are premises in respect of which meat processing activity occurs. This
is entirely consistent with the evidence of both parties in the proceedings (paragraph
2.1 (1) (g) of the Form F10 and paragraph 6 of Mr Seo’s submissions on appeal) and
the evidence of Mr Newton referred to at [24] of the Decision.
There is no error on the part of the Deputy President in her conclusion that all of the
PPE, including boots, clothing, gloves and hairnets were provided for both the
protection of the product and the employees.
Paragraphs [34] to [45] of Bindaree’s submissions respond to Mr Seo’s submissions
at pages 9 to 22 and Bindaree submits that none of the matters raised demonstrate
error on the part of the Deputy President.
Bindaree refers to the decision of Ovation New Zealand Ltd v New Zealand Meat
Workers and Related Trades Union Inc20 which was referred to by Mr Seo and set
out reasons that decisions can be distinguished from the circumstances here.
There is a long-established principle that the exercise of discretion and judgement on
the part of the Deputy President can only be reviewed by this Full Bench, in
circumstances where some error has been made in the exercise of that discretion.
In this case there has been no error demonstrated, only disagreement with the
outcome. It has not been demonstrated that the Deputy President acted on a wrong
principle or failed to act on correct principles, nor that there was any material
mistake in the facts as found. There has been no failure to take into account a
material consideration.
Consideration
[25] The approach of the Full Bench to the determination of an appeal depends on the
nature of the decision at first instance. In the present case, the Deputy President was resolving
a dispute pursuant to the dispute procedure in clause 34 of the Award. Clause 34.1 states that
clause 34 sets out the procedures to be followed if a dispute arises about a matter under this
20 [2018] NZEmpC 151 (17 December 2018).
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award or in relation to the National Employment Standards. Clause 34.5 allows the parties to
agree on the process to be followed by the Commission in dealing with the dispute, including
mediation, conciliation and consent arbitration. The parties consented to an arbitration to
resolve the dispute.
[26] In arbitrating the dispute, the Commission must act in accordance with the Award (see
s 739(5) of the Act). To resolve the dispute, the Deputy President was required to correctly
interpret the relevant provisions of the Award. The Full Bench must determine whether the
Deputy President’s determination of the dispute is correct having regard to the relevant
provisions of the Award.
[27] The general approach to the construction of awards was considered in the judgment of
French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative,
Clerical and Services Union 21 (Wanneroo):
“The construction of an award, like that of a statute, begins with a consideration of the
ordinary meaning of its words. As with the task of statutory construction regard must
be paid to the context and purpose of the provision or expression being construed.
Context may appear from the text of the instrument taken as a whole, its arrangement
and the place in it of the provision under construction. It is not confined to the words
of the relevant Act or instrument surrounding the expression to be construed. It may
extend to ‘...the entire document of which it is a part or to other documents with which
there is an association’. It may also include ‘... ideas that gave rise to an expression in a
document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR
511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer
of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).”22
[28] As was observed by Madgwick J in Kucks v CSR Limited 23 a narrow and pedantic
approach to interpretation should be avoided, a search of the evident purpose is permissible
and meanings which avoid inconvenience or injustice may reasonably be strained for, but:
“. . . the task remains one of interpreting a document produced by another or others. A
court is not free to give effect to some anteriorly derived notion of what would be fair
or just, regardless of what has been written into the award. Deciding what an existing
award means is a process quite different from deciding, as an arbitral body does, what
might fairly be put into an award. So, for example, ordinary or well-understood words
are in general to be accorded their ordinary or usual meaning.” 24
[29] It is apparent that there were two separate disputes that were ultimately agitated for
resolution by Mr Seo. The first was the dispute as it was framed in the Form F10. That dispute
related to the operation of clause 15.1 of the Award, unpaid meal breaks (the first dispute). Mr
Seo asserted in his application that:
“During our break time we are required to do other work (in particular donning and
doffing of PPE which is essential to our job, but also other work such as cleaning and
21 (2006) 153 IR 426.
22 Ibid at 438.
23 (1966) 66 IR 182.
24 Ibid at 184.
[2021] FWCFB 2691
14
sharpening of knives) and we are not allowed to enter the break room or return to the
production area until we complete this work.”
[30] After setting out the activities undertaken after finishing work on the line, Mr Seo
asserts that:
“We can then spend ~20 minutes of our 30-minute break (or recently, due to a change,
30 minutes of our 40-minute break) in the break room or otherwise on our break,
because we must spend ~5 minutes each way donning and doffing our PPE. So we are
required to spend 10 minutes of our break time doing essential work duties.”
[31] The second matter in dispute was evidently only raised by Mr Seo in his submissions
filed after the directions for the programming of the matter were issued. That matter involved
whether undertaking activities including donning and doffing PPE prior to and after each shift
should be regarded as work and remunerated accordingly (the second dispute). We note that
the second dispute does not have any connection at all to the operation of clause 15.1 of the
Award, the impugned clause in Mr Seo’s Form F10.
The first dispute
[32] The first dispute that Mr Seo sought be resolved concerned the correct interpretation
of clause 15.1(a) of the Award. Clause 15.1 is in the following terms:
“15.1 Unpaid meal breaks
(a) No employee will work for longer than 5 hours without a minimum 30 minute
unpaid meal break. Any alternative arrangements between the employer and the
employee must be by mutual agreement between the parties.
(b) Any employee called upon to work during meal break will be paid at overtime
rates for that period.”
[33] The Deputy President examined the activities of donning and doffing PPE and other
processes required of Mr Seo in connection with his meal break in order to determine whether
they were “work” within the meaning of the Award.
[34] What constitutes “work” or “time worked” within the meaning of an industrial
instrument has been considered in a number of different cases. In Minister for Police v WA
Police Force Union of Workers,25 a decision of the Western Australian Industrial Appeal
Court, Neville J said (at 993):
“It seems to me that if a worker is instructed by a superior, whom it is his duty to
obey, that he must do certain things and must not do certain other things, during a
certain period he must, during that period, be on duty and, in the terms of this award,
therefore, that time must be time worked.”
[35] In that case, involving an award which made no separate provision for stand-by, on-
call or waiting allowances, time spent by a police constable on-call where he was required to
25 (1969) 59 WAIG 993.
[2021] FWCFB 2691
15
remain at home, consume no alcohol and be prepared to conduct breathalyser tests when
required, was time on duty for the purposes of the overtime provisions.
[36] In another decision of the Western Australian Industrial Appeal Court, Hospital
Employees’ Industrial Union of Workers, WA v Proprietors of Lee-Downs Nursing Home,26
Burt CJ addressed the concept of time worked under the relevant award in the following
terms:
“In my opinion time is ‘time worked’ within the meaning of the award if it can be seen
that the worker is during the time under consideration doing, whatever it is that he is
doing, upon instructions, express or implied given to him by his employer. What he is
doing need not involve any physical activity. It may be that he is required to be in a
certain place at and during a certain time so that he can act should a certain event
happen and in such a case, as it seems to me, the time so spent is ‘time worked’
whether the event initiating physical activity happens or does not happen. He also
serves who only stands and waits.”
[37] In that case it was held that time spent overnight by a nursing assistant on nursing
home premises under instructions to “report any emergencies which arose relative to the
inmates of the home” was “time worked”.
[38] In Master Builders’ Association of Victoria v Australian Building Construction
Employees' and Builders Labourers' Federation,27 a question arose as to whether time spent
by an employee driving a vehicle provided free of charge by his employer from home to work
and return was "working time" under the relevant award. The Full Court of the Federal Court
comprising Evatt and Northrop JJ said (at 36):
"The true answer is to be found by considering the terms of the contract of
employment and the terms of the award providing for payment of wages. The
interpretation is sought in circumstances where the employee is required, pursuant to
his contract of employment, to drive the vehicle. During other hours of work he
performs work admittedly that of a builder's labourer. This must mean that as part of
his duties as an employee he is required to drive the vehicle from his home to his place
of employment and return on any one day. Put another way, when the employee is
driving the vehicle, he is performing a duty required of him by his employer; he is
performing an obligation imposed upon him by his contract of employment. Such a
man is in our view a builder's labourer within the meaning of the award."
[39] These authorities were considered by French J (as his Honour then was) in Federated
Municipal & Shire Council Employees Union of Australia v Shire of Albany:28
“While the general principles enunciated in that line of cases indicate criteria for the
determination of "time worked" where that expression is used in industrial awards, the
decision in any particular case must depend upon the construction of the relevant
award, whether it makes specific provision for the activity in question, and the facts of
the case.”
26 [1977] WAIG 455.
27 [1981] FCA 49; (1981) 54 FLR 358.
28 [1990] FCA 58; 32 IR 470.
https://www.austlii.edu.au/cgi-bin/LawCite?cit=%281981%29%2054%20FLR%20358
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/1981/49.html
[2021] FWCFB 2691
16
[40] In Warramunda Village Inc v Pryde,29 the Full Court of the Federal Court held (Gyles
J dissenting) that employees rostered on a “sleepover shift” were engaged in “work” for the
purposes of the relevant award (which fixed remuneration by reference to hours worked). The
employees were required to live at a hostel and be on call for assistance during the night but
were entitled to sleep or do as they wished during the shift unless they were actually called
on. Justice Lee said (at [17]-[18]):
“… An employee who attends at the place of employment pursuant to the employer's
direction to be at the employer's premises for a period of time and be available to
provide service at the premises as required by the employer, is not carrying on private
activities but is providing service to the employer. Such an employee is at "work" for
the purposes of the 1995 Award and is entitled to be remunerated according to the
terms of the Award. (See: Hospital Employees' Industrial Union of Workers, WA v
Proprietors of Lee-Downs Nursing Home (1977) 57 WAIG 455 per Burt CJ at 456).
18. In directing an employee to perform a "sleep-over shift", an employer required an
employee to attend the employer's place of work for a nominated period to render
service as required by the employer. Employees assigned to "sleep-over shifts" were
supervisors, whose responsibilities at the place of employment involved more, of
course, than "active `stand-up' duty". No doubt proper conduct of the employer's
enterprise required the employer to have a supervisor available at the hostel in the
course of a night shift. Anticipating that active duty by a supervisor on that shift would
be intermittent and infrequent, the employer permitted the supervisor to sleep as
opportunity allowed. From the perspective of an employee it made little difference
whether a call on a "buzzer" was awaited at the place of work whilst the employee was
conscious at a desk or asleep in a bed. How the employer required the employee to
render service was a matter for the employer.”
[41] Justice Finkelstein rejected (at [31]) the appellant’s argument that an employee on a
sleepover shift does not perform “work” unless the employee is actively attending to the
needs of a patient. This argument by the appellant proceeded on the footing that the word
“work” when used in the award should be given its dictionary meaning of “labouring” or
“toiling”. His Honour observed (at [37]):
“… the words “work” or “worked” when used in provisions such as cl 13 and cl 15 do
not bear the meaning assigned to them by the appellant. The authorities show that
when such words are used in instruments of the type presently under consideration,
what is referred to is an employee who is under the instruction of an employer: the
time under instruction is time worked. In the Hospital Employees' Industrial Union of
Workers v Proprietors of Lee-Downs Nursing Home (1977) 57 WAIG 455 the
question was whether a nurse on night duty who was permitted to sleep nights and be
on call was entitled to wages for "time worked in excess of the ordinary time" within
the meaning of the Nursing Aides and Nursing Assistants' (Private) Award. The
Western Australian Industrial Appeal Court (Burt CJ, Wickham and Wallace JJ), held
that the nurse was entitled to her pay. Burt CJ said (at 456):
29 (2002) 116 FCR 58.
https://www.austlii.edu.au/cgi-bin/LawCite?cit=%281977%29%2057%20WAIG%20455
https://www.austlii.edu.au/cgi-bin/LawCite?cit=%281977%29%2057%20WAIG%20455
[2021] FWCFB 2691
17
"In my opinion, once [the magistrate] held that the worker was on the premises
pursuant to instructions received from the employer ‘to report any emergencies
which arose relative to the inmates of the home’ it follows that the whole of
the time during which she was on the premises pursuant to those instructions
was ‘time worked’ within the meaning of the award. It may be that an
emergency seldom arose and it may be that an emergency never arose but that,
I think, would make no difference. The worker was not on call in the sense that
she could be called upon by the employer to work. She was, I think, under a
continual duty to act if called by a patient and she falls into the category of
persons who serve while waiting."
[42] In Ovation New Zealand Limited v New Zealand Meat Workers and Related Trades
Union Incorporated,30 a decision of the Employment Court of New Zealand, Judge Corkhill
decided that a range of tasks including cleaning gloves, boots, aprons and scabbards and
donning and removing protective clothing and equipment at the beginning and end of each
shift, and at rest and meal breaks, by employees working in a meat processing plant was
“work” for the purposes of s 6 of the Minimum Wage Act 1983 (New Zealand). In so finding,
Judge Corkhill made findings of fact as to the process which the employees in that case were
required to go through before they could commence their meal break. There are a number of
similarities between that process and the process which applies at Bindaree’s workplace. The
Court of Appeal of New Zealand declined an application for leave to appeal from Judge
Corkhill’s decision.31
[43] Drawing these authorities together, we consider that whether particular activities
constitute “work” within the meaning of an industrial instrument depends on the proper
construction of the relevant instrument and the facts of the particular case.
[44] In the present case, clause 15.1(a) of the Award requires that, subject to alternative
arrangements mutually agreed between relevant parties, an employee be given a 30-minute
unpaid meal break prior to completing five hours’ work. If an employee is called on to work
during their 30-minute meal break, they must be paid at overtime rates (clause 15.1(b)). The
evident purpose of a provision such as clause 15.1(a) of the Award is to provide an employee
with a period of time in which the employee is “free, not only to eat a meal, but to leave their
immediate workplace … and socialise with other workers elsewhere in the establishment, or
even leave the employer’s premises altogether on business of their own”.32 Bindaree accepted
in the hearing before the Deputy President that its employees are free to leave the work site
during their 30-minute unpaid meal break.33
[45] Because clause 15.1(b) of the Award deals with a circumstance in which an employee
who is on an unpaid meal break may be called on to work during the meal break, it is clear
that unless an employee is so called on to work they are not working while they are taking
their meal break. That the 30-minute meal break is unpaid also suggests that the employee is
off-duty during the meal break.34 An employee may, of course, choose not to partake in a
30 [2018] NZEmpC 151.
31 Ovation New Zealand Limited v New Zealand Meat Workers and Related Trades Union Incorporated [2019] NZCA 146
32 Duncans Holdings Limited v Cross (1997) 76 IR 261 at 263; Durnford v Allen Taylor and Company Limited (1990) 34 IR
423 at 428.
33 Decision at [31].
34 Duncans Holdings Limited v Cross (1997) 76 IR 261 at 264.
[2021] FWCFB 2691
18
meal during their 30 minute unpaid meal break, but they are nevertheless entitled to a break
from the performance of work for the duration of the meal break.35
[46] The ability of an employee to be “called upon to work during [a] meal break” in
accordance with clause 15.1(b) of the Award is consistent with the notion of “work” referring
to an employee who is under the instruction or direction of their employer, or required by
their employer, to do certain things and while they are doing those things they are “working”.
We consider that to be the proper construction of the word “work” in clause 15.1(a) and (b) of
the Award. It follows that an employee is entitled to have a 30-minute unpaid break from such
“work” in accordance with clause 15.1(a) of the Award.
[47] Bindaree asserted during the proceedings before the Deputy President that the meal
break provision should be interpreted as one which sets the length of the break “free from
processing work…”.36
[48] Bindaree argued that the evident purpose of clause 15.1 in the Award is to provide a
30-minute break away from “productive work” and the penalty in clause 15.1(b) is activated if
an employee is called on to continue or resume “productive work”. We do not accept this
proposition for two reasons.
[49] Firstly, there are no textual indicators we can discern which would support a
construction that it is only “productive” work, as opposed to other work the employee is
required to undertake, that the employee is to be given a break from.
[50] Secondly, this construction would likely lead to outcomes where some employees
would have less than 30 minutes to engage in what would reasonably be considered a break to
take a meal (or engage in other activities of their choice) by virtue of the fact that they are
required to spend a significant amount of time engaged in the activities described by Mr Seo
and required by Bindaree. Other employees who by virtue of their occupation do not need to
undertake the activities described by Mr Seo, would have the full benefit of the 30-minute
break. There is no indication in the text of the Award or the purpose behind clause 15.1 that
such an inequitable outcome was objectively intended when the Award was made. Bindaree
contends that those particular circumstances would not occur in relation to meat processing
activities and therefore it should not be inferred that clause 15.1 was intended to provide a
break for any work-related activity whatsoever. However, this submission ignores that other
classifications covered by the Award, such as a Salesperson, would likely not need to engage
in the types of activities described by Mr Seo and thus would be more likely to enjoy the full
30-minute break. Also relevant to this point is that clause 15.1 of the Award applies to all
employees covered by the Award, unlike provisions such as clause 15.2 which only applies to
meat processing establishments.
[51] Accordingly, we consider that the meal break clause should be interpreted as
providing a 30-minute break to engage in a meal related activity or an activity of the
employee’s choice. If an employer requires an employee to undertake substantive tasks or
activities before they can commence their 30-minute unpaid meal break in accordance with
clause 15.1(a) of the Award, the period of time reasonably required to undertake those tasks
35 Bowker v DP World Melbourne Limited [2014] FWCFB 9227 at [49].
36 Appeal Book at page 42.
[2021] FWCFB 2691
19
or activities is not part of the employee’s break and is “work” within the meaning of clause
15.1.
[52] In paragraph [11] of the Decision the Deputy President recounted the evidence given
by Mr Seo in relation to a “typical shift” at Bindaree:
“[11] The Applicant outlined a breakdown of a “typical shift” as follows:
(a) I arrive at work ~10-15 minutes before my shift start time.
(b) I walk up to the 3rd floor and get my cut-resistant gloves, white uniform shirt,
white uniform pants, hair net & beard net (if necessary), and ear plugs.
(c) I walk to the locker room and start wearing my white uniform shirt and pants,
rubber boots, bump camp, hair net, etc. These are part of my work duties and I
think I should be table to sign on before doing this, but I must start doing it 5-10
minutes before my ordinary start time.
(d) I then walk down a long hallway, down a flight of stairs, down another long
hallway, down another flight of stairs, then line up to wash my rubber boots, wash
my hands, enter the production area, and then I can sign in.
(e) We must sign in ~5 minutes before the start of the shift so we have enough time to
then wear our gloves etc and be at our stations at our starting time. One time I
signed in right on time at the start of my shift (after already spending ~5 minutes
wearing PPE, walking, and washing rubber boots etc) and was told by a Line
Supervisor (Cam) that we must get over to the line by our shift start time. This was
confirmed by the Shift Manager (Duane).
(f) After signing in a few minutes before my shift start time, I then line up to put on
nitrile gloves, plastic arm sleeves, plastic apron, and walk to wherever I will be
working.
(g) During the shift, we will be on the production floor wearing:
i. White uniform shirt & white uniform pants
ii. Rubber boots
iii. Blue nitrile gloves, plastic arm sleeves, plastic apron
iv. Hair net (& beard net, if necessary)
v. Plastic bump cap & ear plugs / ear muffs
vi. Cotton gloves / cut-resistant gloves, if necessary
(h) We work in a regulated industry (food processing) so wearing these items, and
washing the non-disposable ones (such as bump camp & rubber boots), are
integral to performing the principal activities of our job.
[2021] FWCFB 2691
20
(i) At some time (usually 7:30pm), 3-4 lines stop at the same time (~8 workers per
line) and all of those workers are told to go on our break (recently because of the
pandemic situation, lines are being sent on break separately, so there is less
congestion).
i. It is the company’s policy that the break starts at this point (when we are told
to go on our break), and that we must be “back at our stations ready to go” by the
end of the meal break (previously 30 minutes, now 40 minutes).
ii. If we take longer than that, our Supervisor will tell us that we are late back
from the break. I have been told I was late even though I think I went back early
(just not early enough), and I’ve seen a casual worker sent home because he came
back 10 minutes later than everyone else (which in my opinion was on-time).
iii. I clarified this issue with HR Manager Paula, HR Officer Bronwyn, Plant
Manager Steve Dennie, Business Manager Chris, Shift Manager Duane, and Line
Supervisor Cam, who all told me this is when the breaks start and finish.
(j) After being told to “go on our break”, we must then remove our nitrile gloves,
plastic arm sleeves, and plastic apron, and throw them into a bin.
(k) We walk to the exit at the front of the production floor where we must walk
through a boot scrubbing bay to remove any large pieces of meat from our boots.
This is only 1 lane so we must wait for others to stop and scrub their boots. There
is a side door where we can take a short-cut, but doing so results in disciplinary
action.
(l) We walk into the hand-washing bay where we must wash our hands. There are 8-
10 taps, but usually several are broken, and there are 4 hand dryers but it is rare for
any more than 2 dryers to be working, so we usually have to line up to dry our
hands.
(m)We then walk to the boot-washing bay where we must wash our rubber boots.
There are 4 hoses for washing out boots, so we have to line up to use them.
(n) If we use knives, we must rinse our knives and mesh glove.
(o) We then walk up a flight of stairs to the next floor, go through a door, walk down a
long hallway, walk up another flight of stairs to the next floor, then walk down
another long hallway to reach the locker room.
(p) In the locker room we can then remove our white uniform shirt (and hair net,
bump camp, etc), and at this point we are able to enter the break room or otherwise
go on our break.
i. It is company policy that wearing our white uniform shirt is not permitted in the
break room or the bathroom.
[2021] FWCFB 2691
21
ii. It is company policy that wearing our white shirt, white pants, rubber boots, or
bump camp off-site is not permitted.
iii. It is company policy that we must store these items in designated areas (rubber
boots on designated hooks and not on the floor, other items in our locker if they
are clean, white shirt and pants to be returned to laundry bin at end of shift so they
can be laundered in “special food-safe chemicals”), and failing to do so results in
disciplinary action and “toolbox talks”.
(q) From being told to “go our break” [sic] at the line until arriving in the locker room
we have usually spent about 5 minutes doing duties that we are required to do
before entering the break room or otherwise going on our break.
(r) If we want to leave the site during our break, we must also remove our white
uniform pants and rubber boots, and store them correctly.
(s) For example, when the line stops and we are told to go on our break, if we then
walk straight out the front to the building while wearing our nitrile gloves, plastic
arm sleeves, plastic apron, rubber boots, white shirt, white pants etc, we would be
disciplined.
(t) Even though we have a 30-minute break (now 40 minutes), we must plan to start
going down early because we must do the same duties in reverse before entering
the production floor, and be back at our station waring nitrile gloves, plastic
sleeves & apron, hair net, etc, 30 minutes (now 40 minutes) from when the line
stopped.
(u) So really we are doing about 10 minutes of work (about 5 minutes each way)
during our break.
(v) 1 reason why it takes so long is the distance between the production floor and the
locker room, another reason is that many people must line up to use a small
number of facilities such as hand dryer and boot-washing hoses, but the reason
why we must perform these duties before entering the break room / production
area is because of regulatory requirements and company policies.
(w)At the end of our shift, we are told we can sign off. We must sign off at the current
time, and failing to do so results in disciplinary action. But even after signing off
we are not free to just walk out of the building. We must still spend 5 minutes
doing those same work duties (hand-washing, washing rubber boots, washing
knives, washing mesh gloves, putting our white uniform shirt and pants in laundry
bins, hanging our boots on designated hooks, disposing of hair nets, beard nets, ear
plugs etc in bins, and storing our bump caps in our locker) before we are free to
leave the building. Failing to do any of these duties results in disciplinary action. I
think we should be able to sign off after doing all of these duties, because they are
not optional, are part of our job, and take time to perform.”
[53] The activities described in paragraphs [11(j)] to [11(v)] of the Decision relate to the
taking of a 30-minute unpaid meal break in accordance with clause 15.1(a) of the Award. We
will refer to these activities as the meal break activities.
[2021] FWCFB 2691
22
[54] Although Bindaree disputed Mr Seo’s evidence that the meal break activities would
reasonably take about five minutes,37 Bindaree did not dispute that the meal break activities
were undertaken by Mr Seo and were required by Bindaree to be undertaken before Mr Seo
could enter the locker room or otherwise commence activities of his choice whilst off-duty.
[55] Indeed, the meal break activities are substantive activities which form an essential
aspect of Bindaree’s business, because absent proper adherence to necessary hygiene
procedures and appropriate health and safety practices, Bindaree would not be able to operate
its business in the meat industry. For the same reasons, the meal break activities are essential
aspects of Mr Seo’s responsibilities as a production line worker who prepares meat for
packaging on a processing line.
[56] As the Deputy President found, there is no doubt that some of the meal break
activities, such as donning and doffing PPE, provided some benefit to Mr Seo as well as to
Bindaree, and are a feature of the industry in which the work is conducted. However, this does
not detract from the fact that Bindaree required all the meal break activities to be undertaken
by Mr Seo before he could prepare or partake in a meal or engage in any other activity of his
choice. Mr Seo did not have available to him the choice not to engage in some or all of the
meal break activities. This is to be contrasted to many other employees in different
workplaces who choose to wash their hands or remove an item of PPE before eating on a meal
break. Nor is this a case where it could be seriously contended that the amount of time taken
to undertake the meal break activities was so minimal it should be regarded as de minimis. We
are not, for example, dealing with a requirement that an employee put on a safety helmet,
safety glasses and a hi-vis vest on their way out of the crib room at the end of a meal break.
[57] Because Mr Seo was required by Bindaree to undertake the meal break activities,
which were substantive, before he could prepare or partake in a meal or engage in any other
activity of his choice, and also after he had partaken in a meal or activity of his choice, we
consider that the time reasonably taken to engage in the meal break activities was not part of
Mr Seo’s 30-minute unpaid meal break in accordance with clause 15.1(a) of the Award. The
meal break activities constitute “work” undertaken by Mr Seo within the meaning of clause
15.1 of the Award. The Deputy President’s determination that the meal break activities were
not part of Mr Seo’s “work” and, as a result, Mr Seo did not have less than a 30-minute meal
break was, we respectfully conclude, in error.
[58] However, it is apparent on the evidence that from 6 July 2020, and prior to the lodging
of the dispute, Bindaree has provided a paid period of 10 minutes each day in addition to Mr
Seo’s unpaid 30-minute meal break. That is, Mr Seo is in effect permitted to have a 40 minute
break from his production work, 10 minutes of which is paid and 30 minutes of which is
unpaid. Therefore, since 6 July 2020 Mr Seo has in fact been receiving a 30-minute unpaid
meal break. The Deputy President found, correctly and unsurprisingly, that this was the case.
[59] It follows that even though we have respectfully determined that the Deputy President
was wrong in her conclusion that the meal break activities were not work, that makes no
difference to the outcome for Mr Seo and Bindaree insofar as the first dispute concerns the
period from 6 July 2020 onwards. This is because, even accepting the evidence of Mr Seo that
the meal break activities take up a total of 10 minutes each meal break time (5 minutes prior
37 Decision at [28].
[2021] FWCFB 2691
23
to the rest break commencing and 5 minutes after it concludes), the additional 10 minutes paid
time break provided to Mr Seo each day since 6 July 2020 covers the claim.38
[60] That is not, however, the end of the first dispute. It will be recalled that part of the
relief sought by Mr Seo in his Form F10 was back pay “at overtime rates for the work done
during the break time over the last ~2 years (10 minutes of work per day)”. The additional 10
minutes of paid time per day provided to Mr Seo since 6 July 2020 has no impact on his claim
for back pay in the period from the commencement of his employment in September 2018 to
5 July 2020.
[61] The backward-looking aspect of the first dispute was part of the dispute to which the
parties consented being arbitrated by the Commission. The Deputy President was exercising a
power of private arbitration when she made decisions in relation to it.39
[62] The earlier period from the commencement of Mr Seo’s employment with Bindaree in
September 2018 until 5 July 2020 may conveniently be separated into two parts:
First, the period from September 2018 until the commencement of Mr Seo’s new
contract of employment with Bindaree which contains (at clause 7) a set-off
provision;40 and
Secondly, the period from the commencement of Mr Seo’s new contract of
employment with Bindaree which contains a set-off provision to 5 July 2020.
[63] As to the first period, because the Deputy President determined the dispute on the
basis that the meal break activities were not “work” undertaken by Mr Seo within the meaning
of clause 15.1 of the Award, no findings were made by the Deputy President as to the terms
and conditions on which Mr Seo was employed by Bindaree during that period, nor were any
findings made as to the amount of time it took, or ought reasonably have taken, Mr Seo to
undertake the meal break activities. Findings will have to be made on at least these issues
when the dispute is remitted in order to determine the claim for back pay in the first period.
[64] As to the second period, we agree with the Deputy President’s conclusion (at [62]) that
clause 7 of Mr Seo’s contract of employment can be used to set off the remuneration paid to
him under the contract against his claim for entitlements pursuant to clause 15.1 of the Award.
However, whether the amount paid to Mr Seo under his contract was sufficient to set off his
entitlement to be paid overtime for time worked in undertaking the meal break activities
depends on a range of matters, including findings which will need to be made as to the
amount of time it took, or ought reasonably have taken, Mr Seo to undertake the meal break
activities, and any other Award entitlements which may be owing to Mr Seo in respect of the
second period. Findings will have to be made on at least these issues when the dispute is
remitted in order to determine the claim for back pay in the second period.
The second dispute
38 Appeal Book at page 35.
39 AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [33]-[36]; CFMEU v AIRC (2001) 203 CLR 645 at
[32]; Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [19]-[24]
40 Decision at [61].
[2021] FWCFB 2691
24
[65] In respect to what we have termed the second dispute, that is whether or not activities
including the doffing or donning of PPE before and after shift is work for which Mr Seo is
entitled to be remunerated, we are of the view that the second dispute was not within the
jurisdiction of the Commission and the Deputy President erred in determining to the contrary.
[66] Firstly, the Commission can only determine matters within the limits of s.739(5) of the
Act, which states that the FWC must not make a decision that is inconsistent with the Act, or
a fair work instrument that applies to the parties. The dispute settlement clause in the Award
provides that a series of steps must be taken before the matter can be referred to the
Commission. These steps are mandatory steps. So much is clear from the repeated use of the
word “must” in clauses 34.2 and 34.3 and the requirement in clause 34.4 for “all appropriate
steps to have been taken under clauses 34.2 and 34.3” of the Award before a party to the
dispute may refer it to the Commission. While it is accepted that a dispute may evolve during
proceedings in the Commission, we do not accept that the claim for additional payments in
respect of work allegedly undertaken before and after a shift can be so characterised.
Although such a claim shares the characteristic of involving some of the same activities as the
meal break activities, there is no relationship with the key clause in the Award in question, the
meal break clause.41
[67] Secondly, in order for the Commission to engage in private arbitration there needs to
be consent from the parties for the Commission to do so. It is evident that the parties
consented to the private arbitration in respect to the dispute about the operation of the meal
break clause. However, at its highest, the most that could be said in respect to the second
dispute is that Bindaree did not object.42 It is not apparent from a review of the transcript of
the proceedings that Bindaree consented to having the Commission arbitrate the second
dispute. While there need not be any great formality to secure consent to the private
arbitration, in circumstances such as these where a party has consented to private arbitration
on the discreet issue of the interpretation of the meal break clause, something more than
complete silence is required to indicate consent to arbitration of a dispute about different
provisions of an industrial instrument.
[68] The first dispute, as framed by Mr Seo, was connected to the protection of clause 15.1,
meal breaks. The second dispute has no relationship to that clause, it is a completely separate
issue. The second dispute is one that Mr Seo could have raised through the dispute procedure
to enliven jurisdiction. He did not do so. Mr Seo may still seek to raise the second dispute as a
new dispute, and in so doing identify which clauses of the Award are relevant to that dispute,
raise the matter with the employer in the manner described in the dispute settlement procedure
and ultimately if those discussions are unsuccessful in resolving the dispute, the matter may
return to the Commission for resolution in accordance with the dispute procedure.
Conclusion
[69] The only parties to the dispute before the Deputy President were Mr Seo and Bindaree.
It follows that the Deputy President’s determination was only binding on Mr Seo and
Bindaree. Notwithstanding these limitations, the errors we have identified above go to the
proper construction of clause 15.1 of the Award and the jurisdiction of the Commission. We
41 Clause 15.1 of the Award.
42 Decision at [52].
[2021] FWCFB 2691
25
consider that these matters are of importance and general application. We are satisfied that the
appeal enlivens the public interest.
[70] For the foregoing reasons, in respect to the first dispute, we have determined that, for
the period from the commencement of his employment with Bindaree until 5 July 2020, the
Deputy President erred in finding that the meal break activities which Mr Seo was required to
undertake did not constitute work, with the result that he was provided with a minimum 30-
minute unpaid break in accordance with clause 15.1(a) of the Award. We quash that part of
the Decision. However, Mr Seo was, as a matter of fact, accessing the full 30-minute unpaid
meal break at the time the dispute was lodged by virtue of the fact that Bindaree had, from 6
July 2020, extended the meal break to 40 minutes by virtue of an additional 10 minutes of
paid time. Therefore, the Deputy President was correct to determine that Mr Seo has been
given his full 30-minute unpaid meal break since 6 July 2020.
[71] There was not the necessary jurisdiction for the Commission to arbitrate the second
dispute relating to work allegedly undertaken before and after a shift. Accordingly, we quash
that element of the Deputy President’s Decision and dismiss the second dispute.
Disposition of the Appeal
[72] We order that:
(a) Permission to appeal is granted.
(b) The appeal is upheld insofar as it concerns:
(i) the first dispute in respect of the period from the commencement of Mr Seo’s
employment to 5 July 2020; and
(ii) the second dispute.
(c) The appeal is otherwise dismissed.
(d) The Deputy President’s determination is quashed insofar as it concerns:
(i) the first dispute in respect of the period from the commencement of Mr Seo’s
employment to 5 July 2020; and
(ii) the second dispute.
(e) The matter is remitted to Deputy President Asbury to determine the first dispute in
respect of the period from the commencement of Mr Seo’s employment to 5 July
2020.
(f) The second dispute is dismissed.
[2021] FWCFB 2691
26
VICE PRESIDENT
Hearing details:
Matter determined on the papers.
Final written submissions:
Appellant’s written submissions filed 19 January 2021.
Respondent’s written submissions dated 12 February 2021.
Printed by authority of the Commonwealth Government Printer
PR729760
THE FAIR WORK COMME A ISSION THE SEA
